O’Mullane v Wehbe [2022] NSWLEC 1604 – 2 November 2022

Tree Dispute – Between Neighbours – Debris in Neighbouring Pool – No Damage Found

Recently, the New South Wales Land and Environment Court refused an application to remove a mature Melaleuca linariifolia (Snow in Summer) tree. Acting Commissioner Douglas (Douglas AC) found that there was no evidence to suggest that the tree caused damage to the neighbouring property, nor did it pose any risk of injury or damage to the sewer-lines beneath the property.

The Applicant

The Applicant (O’Mullane) submitted an application to have the tree removed, pursuant to the Trees (Disputes between Neighbours) Act 2006 (Trees Act) s 7. This claim was made on the basis that the nine (9) meter tall tree on the neighbouring property was overhanging and blew seeds, leaves and branches into his pool. This debris required the Applicant to pay for ongoing maintenance of this debris clogging his pool filtration system.

The Respondent

The Respondent (Wehbe) resisted the removal of the tree, disputing that it caused damage significant enough to necessitate its removal. The Respondent’s property housed an Early Learning Centre, and the tree provided necessary shade. When the Applicant applied for an inspection to be performed by the Sutherland Shire Council, the Respondent was amicable and abided with their order for the tree to be trimmed back. The Respondent also provided that the area, Sutherland Shire, is a “tree filled community”[1] and that all residents share the same need for upkeep of their yards, paths and pools.

Debris Dropping in and Around Pool

When determining the issue of the debris in the pool, Douglas AC relied on the commentary of Preston CJ in the Robson v Leischke [2008] case:

“Annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind”, is not “damage to property on the land” within the Tree Act s 7, and that “leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbours land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour’s land they will not be actionable under s 7.”[2]

Risk of Damage to Sewer Pipes
Douglas AC held that the mere existence of a sewer-line being in the proximity of a tree is not sufficient to make an order to remove it. Citing the Smith & Hannaford v Zhang & Zhou [2011] decision,[3] Douglas AC held that the Applicant’s claim of the risk of damage to the sewer-line was speculative and was only a “theoretical possibility.”[4]

Risk of Injury

Douglas AC held that there was no evidence that the debris from the tree posed any obvious risk to the safety of the Applicant or anyone else. Further, it was found that the roots of the tree did not pose any risk of damage to the sewer-line beyond the speculation of the Applicant.

Held

The Court held that the tree did not meet the necessary requirements found in the Trees Act s 10(2) as it did not pose a risk of damage to property or injury to a person. Thus, the Court had no power to make the order to remove the tree.

The application was refused.


[1] Robson v Leischke [2008] NSWLEC 152 [7].

[2] Ibid[171].

[3] Hannaford v Zhang & Zhou [2011] NSWLEC 29.

[4] Ibid [62].

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